'Hollow' states: the presidents re-writing the rules to stay in power

Should he stay or should he go? When it comes to the president, it's the subject of heated debate in Burundi, Congo, DR Congo and Rwanda.

Supporters of President Joseph Kabila dance at a political rally held in 2006 in Kinshasa, DR Congo. The government is currently trying to block elections so he can continue as president. Credit: Jerome Delay/AP/Press Association ImageWhen Jakaya Kikwete stepped down as Tanzania's president in October 2015 he appeared almost anachronistic.

Kikwete is an anomaly in a trend across central and east Africa of presidents at the end of their constitutionally mandated terms who are desperately clinging to power. What's more, they are not doing it by breaking the rules -- instead they are doing all they can to nullify constitutional term limits -- re-writing the rulebook to suit themselves.

In March of this year, Republic of
Congo's president Denis Sassou Nguesso was re-elected after a
constitutional referendum removed term limits last year. In Burundi, an similar attempt to change the
constitution failed. However, under enormous pressure from the ruling elite, the country's constitutional court legalised President Pierre Nkurunziza's candidature for
elections, which he won in August 2015, commencing his third term in office.

In
Rwanda, a new constitution was approved in in a referendum in December 2015, effectively giving President Paul Kagame a fresh start, allowing him run for another two terms from the 2017 election. In the Democratic Republic of the Congo, the
government is currently doing anything possible to block the road to elections,
due this fall, in order to allow President Joseph Kabila to continue his rule.

What is striking about all these cases is that incumbents do not resort to bluntly extra-constitutional means to prolong their rule

The current dynamics confirm an ongoing trend in Sub-Saharan Africa. Since
the 1990s, the vast majority of African countries have constitutionally fixed
presidential term limits. Ever since, the number of presidents who tried to
re-write or undermine the constitution in order to stay in power beyond their
last (usually second) term outnumbers those who simply adhered to term limits.

What is striking about all these cases is that incumbents do not resort
to bluntly extra-constitutional means to prolong their rule. Rather, they stick
to formal procedures such as a change of the constitution through parliament
and/or a referendum, or by calling on the constitutional court to interpret the
law in their favor.

Africa’s hollow states

Since the 1990s, formal democracy has become the norm in Africa. The
most obvious manifestation is that over the past two decades the way in which
political leaders come into office or leave power is constrained by increasingly
competitive elections. This is a clear sign that political leaders now largely accept the necessity to
periodically acquire political legitimacy through the ballot box.

Even in the countries where repression is increasing, politics
is progressively regulated through formal rules and procedures and even heads of state feel the need to play by certain official rules.

But where ruling parties and
elites exert political control over institutions that are meant to guard against
unconstrained executive power – parliaments, senates and courts ­­– rules are easily manipulated and unable to provide effective constraints. In other words,
where ruling elites make and modify the rules of democracy which they are
supposed to respect, norms can become empty shells, or worse, means to
legitimize rather than constrain authoritarian tendencies.

The latest findings of the Bertelsmann Stiftung’s Transformation Index, BTI 2016, with its system of multilayered indicators of
democracy and governance, reflects the paradox of an increasing institutionalization
of power flanked by a hollowing out of the normative essence of institutions of
democracy and the rule of law.

If we look at those east and central African countries where presidents
are currently trying to circumvent term limits (Burundi, Congo, DR Congo and Rwanda), we see that the BTI’s Rule of Law and Stability of Democratic Institutions
criteria has stayed low but relatively stable since 2010. Burundi is the exception:
there we observe a decrease of the rule of law by 0.8 points and a decrease in
stability of democratic institutions by 2.0 points.

Political participation suffered in all of these four countries
since the 2010 index: 1.5 points for Burundi and the DR Congo, 1 point for
Rwanda and 0.5 points for the Republic of Congo. The overall democracy rating will
most probably further decrease in the next index given that all countries
experienced or are experiencing the hollowing out of term limits, flawed
elections and a slide into long-term presidencies.

In Burundi, the discussion around term limits has too long revolved around the question whether a legal loophole would allow a third term for Nkurunziza

Required: a clear stance against third-term bids

Whereas the undermining of term limits caused widespread violent protest
in Burundi, the DR Congo and the Republic of Congo, Rwanda remains peaceful. But the degree of open protest should not be misinterpreted as an
indicator of acceptance or disagreement within the population. A multiplicity of factors such as the nature and organisational capacity of civil
society, space for political expression, assembly and association, as well
as effectiveness of governments and security institutions to prevent and clamp
down on protests are influence popular uprisings.

In Burundi, the discussion around term limits has too long revolved
around the question whether a legal loophole would allow a third term for Nkurunziza. When the constitutional court had his third-term bid officially
legalized – under massive pressure from the government – the argument against a
third term lost much of its legitimacy. It was only after it became obvious
that civil society, the opposition and angry youth would not stop their protests in the street and after the military became involved and a refugee crisis
unfolded that international condemnation of Nkurunziza's third term became
more pronounced.

What the Burundian case clearly shows is that a hesitant and ambiguous
response to third term bids is of little help to actors within a
political system who advocate for term limits and respect of democratic norms
beyond formal procedures.

The contradiction
between formal rules and procedures and the normative objectives of those in power will
continue to be of concern in African states in the coming years. The controversy around term limits shows that high levels of compliance with formal rules does not necessarily strengthen democracy in the sense that democratic institutions effectively
constrain political rule.

Already now, amendments of formal rules in order to increase a
president's power have become the norm, rather than the exception, and
authoritarian tendencies within the framework of superficial democracy and the
rule of law are on the rise. It remains to be seen whether the responses of the
populace as well as the international community will become strong enough to
counter these concerns about the political transformation of many African
countries.

This article is published in association with the Westminster Foundation for Democracy, which is seeking to contribute to public knowledge about effective democracy-strengthening by leading a discussion on openDemocracy about what approaches work best. Views expressed herein do not necessarily reflect those of WFD. WFD’s programmes bring together parliamentary and political party expertise to help developing countries and countries transitioning to democracy.

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